Come to Quebec and sue Apple

A few weeks ago a decision came out of a Montreal courtroom that could end up landing you some of that sweet, sweet Apple cash. You know, if you are into that sort of thing. Do you own an iPhone or iPad and live in Quebec? Continue reading!

[Name redacted} v. Apple Inc. – get used to hearing those names. The decision that was released did not receive anywhere near the media attention it deserved – a mere four Google News results, none of which are from any big media outlet (of course the lawyers noticed). But this case is going to be huge eventually, for the reasons you can imagine. A very large group of people suing Apple? If that ain’t a newsworthy lawsuit, I don’t know what is.

So what happened on June 27? A Quebec Superior Court Judge delivered a decision (PDF) that authorized a class action lawsuit against Apple to go forward. I am going to assume my readers are smart enough to know what a class action is. OK OK, briefly, a class action is when a whole bunch of people sue somebody because they all have the same “cause of action” against that defendant. Let’s say for example you own shares in a company, like, I don’t know, Nortel, and Nortel really fucked up by lying about how good they were, their share price crashed, and you want to sue them for the loss you took. There are so many people who are in the same position they would clog the courts if you all sued Nortel individually. So you all sue Nortel in one big lawsuit – a class action.

The first step in a class action is to get the authorization by the court to go forward. That’s what happened in the June 27 decision. As usual, I read so you don’t have to. The decision opens:

Petitioner wishes to institute a Class Action on behalf of the following group:
all residents in Canada who have purchased or otherwise acquired an iPhone or iPad (“iDevice”) and who have downloaded free Apps from the App Store onto their iDevices since December 1, 2008 through to the present, or any other group to be determined by the Court.

Holy crap that is a lot of people! This report says 62% of Canadians over 18 own a smartphone, and 21% of those own an iPhone. As a lawyer I am bad at math, but I am sure that is millions of people! And what iPhone owner hasn’t downloaded a free app? And that doesn’t include iPads even. Like I said, this should be huge news.

The “Petitioner” mentioned in the quote is [name redacted]. Here is the next thing you need to know about a class action lawsuit – you have to have a “representative” plaintiff for the class. It can be anyone who has the cause of action and suffered the damages. The Court would go on to conclude that [name redacted] is approved as the representative.

So why did [name redacted] want to sue Apple on behalf of all these people? As usual, it’s all about data and privacy. He claims that third-party apps collect data without permission, and this is facilitated by Apple. The Court writes:

[9]The Petitioner claims that personal identifiable information concerning each of the Class Members was collected through the Apps and was transmitted, without their knowledge or permission, to third parties, for purposes wholly unrelated to the use and functionality of their iDevices or the Apps.

[10] The information collected would have included Class Members’ precise home and workplace locations and current whereabouts; unique device identifier (UDID) assigned to Class Members’ iDevice; personal name assigned to the device; Class Member’s gender, age, postal code, and time zone; as well as App-specific activity such as the functions Class Members performed on the App; search terms entered; and selections of movies, songs, restaurants, etc…;

Big surprise, people are collecting data about you! This ostensibly would violate all sorts of privacy laws. So where did [name redacted] get the idea his privacy was being violated? The United States of course! There are already two class actions against Apple going on in the States, including one in California which is going to trial in September. They allege the same thing as this lawsuit – third parties collecting data without permission through their apps. The decision itself makes it clear:

Petitioner was inspired to take this action when he learned of the institution of two Class Actions filed in the United States regarding the facts alleged in his proceedings. He has filed as exhibits, proceedings relating to one of those cases, namely Case 5:11-md-02250-LHK, In re: iPhone Application Litig. (the American case). This case leads him to believe that he too, could have suffered injury from the same behaviour attributed to Apple.

Hey I like this idea! Find American cases and copy them here. If you find a good one let me know, I’ll represent you. You may ask yourself why is [name redacted] suing Apple instead of the actual app developers who are collecting the data? Here you go:

Petitioner’s claim is based on Apple having full control over the App and Apple ecosystem allowing for the making of clandestine and intrusive use of personally identifiable information while representing to its clients that they will protect their privacy.

Translation: Apple has money and the app developers don’t.

So what “injury” does [name redacted] claim he suffered as a result of the data collection? Well that’s the fun thing here. It doesn’t really say! But it doesn’t really have to at this point. Sure, the decision talks about potential punitive damages and the fact that an iDevice should be cheaper because data is collected (WTF?), but the decision doesn’t get into any sorts of details there. But as I just said, it doesn’t have to. As the Court points out in its analysis, proving any injury or damages has nothing to do with the criteria for authorizing the class action to go forward. And what are those criteria? Here you go, from the Code of Civil Procedure:

1003. The court authorizes the bringing of the class action and ascribes the status of representative to the member it designates if of opinion that:
(a) the recourses of the members raise identical, similar or related questions of law or fact;
(b) the facts alleged seem to justify the conclusions sought;
(c) the composition of the group makes the application of article 59 or 67 difficult or impracticable; and
(d) the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately.

Ignoring (c) because it’s just procedural bullshit about numbers that’s boring, you can see how it might be really easy to find a, b, and d (and the Court did so). You really don’t have to prove anything about the merits of the case at this stage.

Apple argued that the potential class is just too broad. And they are right! Like I said, probably millions of people. And the Court seems to admit as much, but then say it’s not our problem:

The description of the group is very broad. It risks capturing individuals who are not intended to be captured. This is something to be debated on the merits. (…) As the case develops this issue of the group description will be reassessed.

I think the Court actually kind of fucked up here. One of the points of a class action authorization is to properly define the class, not just punt it down the line. But what do I know.

So [name redacted] basically got everything he wanted at this stage, with one exception. It seems like Canada was just too big a place for a Quebec court to handle. The Judge writes:

[49] The Court deems however, that Petitioner has failed to establish a real and substantial connection for residents outside Quebec.

[50] The legal theory behind Petitioner’s allegations is principally based on the application of privacy laws in Quebec including the Quebec Charter of Human Rights and Freedoms and civil liability arising from the Civil Code as it regards misrepresentations. The Petitioner has not demonstrated that the legal systems in the twelve and more different jurisdictions that he wishes to apply to this case rely on similar laws and concepts.

OK so we’re down from millions to hundreds of thousands. Progress! There is an interesting issue I haven’t mentioned yet. [name redacted] claimed that the apps were collecting geolocation data even when geolocation services were turned off. That, I will admit, is kind of fucked up. Anyway, that shows up in the Court’s big conclusion, after authorizing the class action:

ASCRIBES Petitioner the status of representative of the persons included in the Class herein described as:

all residents in Quebec who have purchased or otherwise acquired an iPhone or iPad (“iDevice”) and who have downloaded free Apps from the App Store onto their iDevices since December 1, 2008 through to the present.

and (the Geolocation Class)
all residents in Quebec who have purchased or otherwise acquired an iPhone and turned Location Services off on their iPhones prior to April 27, 2011 and have unwittingly, and without notice or consent transmitted location data to Respondents’ servers.

So is that you? Sign up to be part of the class! We’ll find out in a few weeks how to do it. Watch this space for deets.

There is something you should know about Quebec, which may play a role here. Quebec is known as a haven for class actions. You can see how many class actions are active right now. There are all sorts of reasons for this. A lot of boils down to the fact that Quebec is a very favourable jurisdiction for consumers generally. Our Consumer Protection Act is very strong. Class actions help to protect consumers, and the government wants to facilitate that. If you want to start a class action, you may not even have to pay for it! The Quebec Goverment has a fund that helps litigants in class actions. Apply now!

Now, this usually a good thing. For example, there is a class action with respect to the Lac-Megantic train disaster. If there are consumer products that are truly troublesome for some reason, it is a good thing to be able to easily start a class action. Unfortunately, Quebec’s positive attitude towards class actions is often used by lawyers and litigants as a cash grab. I am not necessarily saying that is what is going on with this Apple case. But it is certainly worth keeping in mind as the case moves forward.

If you think you have been wronged
in a Napoleonic jurisprudence governed town
look for the best that can be found
Better call Allen to see if your case is sound
(with the video its as good as” better call Saul”)

possible class action. Find someone in Quebec who is a sure thing to be META data or Echelon captured. Outside Quebec I would say David Suzuki, then sue the government for invasion of privacy or some legal equivalent. My ignorant thought is that the government would have to prove they are not gathering data, and of course they are so the whole lid would be blown off.

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.